Stealthing and Affirmative Consent (ACT)

In 2021, the ACT passed legislation changing its definition of sexual consent to an affirmative consent model and criminalizing the practice known as stealthing. The ACT was the second Australian jurisdiction to pass such changes, following New South Wales. This page outlines the ACT’s new laws around sexual consent.

What is consent?

Most sexual offences against adults are based on the allegation that the complainant did not consent to the activity. The only exception to this is the offence of incest, which is an offence even where all participants consented. Other sexual offences such as sexual assault, sex without consent and acts of indecency all involve a lack of consent by the victim.

Under section 50B of the Crimes Act 1900, consent is now defined as free and voluntary agreement that is communicated by saying or doing something. In the past, consent was defined only as ‘free and voluntary agreement’ without the requirement that a person have done something to actively convey their consent.

If a complainant is found not to have consented to sexual activity, then the accused will be found guilty of the offence.

Affirmative consent

The change to the definition of consent represents a shift to an affirmative consent model of sexual consent. Affirmative consent requires any person who is taking part in sexual activity to actively communicate their consent either through words or through actions. Under this model, there is no presumption that a person who does not resist sexual advances either physically or verbally was consenting to the act.

Stealthing

Stealthing is the practice of removing or tampering with a condom during sex without the consent of the other person. Under section 67 of the Crimes Act 1900, a person will not be taken to have consented to sex if they agreed to the act on the basis of an intentional false representation about the use of a condom.

When is a person not consenting?

Under section 67 of the Crimes Act 1900, a person will not be taken to have consented to a sexual act if:

• they said or did something to communicate that they were withdrawing their agreement
• participates because of the infliction or threat of violence or force
• participates because of extortion, coercion, blackmail, intimidation or a fear of public humiliation or disgrace
• participates because of a threat to mentally or physically harass a person
• participates because of force or fear
• cannot agree because of their intoxication
• is mistaken about the identity of the other person
• participates because of a fraudulent misrepresentation
• participates because of an intentional misrepresentation about the use of a condom
• participates because of the abuse of a relationship of authority or a professional relationship
• does not have capacity to agree
• is asleep, unconscious or unlawfully detained.

Furthermore, a person is not to be taken to have consented to an act only because they did not say or do anything to resist or because they have consented to other acts on other occasions.

Has an offence been committed?

If a person has been charged with a sexual offence involving lack of consent, they will be found guilty of the offence if any of the following applies:

• the alleged act occurred and the accused knew the victim was not consenting;
• the alleged act occurred and the accused was reckless as to whether the victim was consenting.

A person is reckless as to consent if:

• they did not consider whether the other person was consenting; or
• they did not take reasonable steps to find out whether the other person was consenting.

A person may be found not guilty of a sexual offence involving a lack of consent if the court accepts that they had an honest and reasonable but mistaken belief that the victim was consenting.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.